Board of Revenue and Road Com'rs of Mobile County v. Puckett, 1 Div. 751.

• Decision Date: 08 June 1933
• Docket Number: 1 Div. 751.
• Citation: 149 So. 850,227 Ala. 374
• Parties: BOARD OF REVENUE AND ROAD COM'RS OF MOBILE COUNTY et al. v. PUCKETT.
• Court: Alabama Supreme Court

149 So. 850

227 Ala. 374

BOARD OF REVENUE AND ROAD COM'RS OF MOBILE COUNTY et al. v. PUCKETT.

1 Div. 751.

Supreme Court of Alabama

June 8, 1933

Rehearing Denied Oct. 12, 1933.

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Petition of Gladys Puckett for mandamus to the Board of Revenue and Road Commissioners of Mobile County, and the individuals composing said board. From a judgment awarding the writ respondent appeals.

Affirmed.

ANDERSON C.J., and THOMAS and BROWN, JJ., dissenting.

Gordon Edington & Leigh, of Mobile, for appellant.

Wm. H Cowan and George S. Taylor, both of Mobile, for appellees.

FOSTER Justice.

This case is controlled by the validity or not of an act of the Legislature passed over the veto of the Governor July 25, 1931 (Local Acts 1931, page 249), by which an appropriation of funds from the general treasury of Mobile county was made for Mrs. Puckett on account of the death of her husband, which the act alleges occurred while he was performing his duties as an employee of Mobile county.

The first contention made on behalf of the county authorities is that it violates section 94 of the Constitution. This court, in Garland v. Board of Revenue, 87 Ala. 223, 6 So. 402, made a comprehensive exposition of the purpose and meaning of the same provision in the Constitution of 1875 (article 4, § 55). Several counties had subscribed for stock in railroad corporations, issued bonds for that purpose, from which disastrous consequences ensued. It was said that the provision was mainly to prevent a recurrence of such consequences, but that its terms were comprehensive enough to exclude any aid to private enterprises. It was also said to include in its prohibition a direct loan or grant to an individual. Griffin v. Jeffers, 221 Ala. 649, 130 So. 190; Stone v. State, 223 Ala. 426, 136 So. 727.

The only ground for controversy in this connection relates to a proper application of the principle; to ascertain whether the appropriation is a grant to an individual, without a public benefit.

It is conceded that though section 94 directly prohibits the grant of authority to counties, etc., to make grants to individuals, it would also prohibit the Legislature from making a donation of county funds to a private person without sufficient consideration. Stone v. State ex rel., etc., 223 Ala. 426, 136 So. 727. Not here considering its right to provide relief for the poor. Section 2787 et sec., Code; section 88, Constitution. This involves two questions argued by counsel: (1) Can the Legislature make any appropriation of the county general funds, and (2) does the act show a sufficient public consideration for such an appropriation?

In connection with the first inquiry, we quote as follows from State v. Brewer, 64 Ala. 287, pages 294, 295: "Whatever of power may be exercised by the different or all the departments of the local government which may be ordained, is the power of the State, delegated to the county. A limited power of taxation, for local purposes and advantages, is vested in some designated tribunal. It is but a parcel of the power of taxation residing in the State; is in part exercised by the State, through the appointed agency; and, except in the purposes to which the revenues derived by the exercise of the power may be applied, there is but little room for distinguishing between State and county taxation. The power conferred, as between the county and State, may be at any time withdrawn, or modified, or altered at the legislative will. The taxes levied for county purposes, while in process of collection, or after collection, may be withdrawn from the county, or from its treasury, and appropriated as the legislature may direct. There can be no ground for complaint-the State is not dealing with an individual, nor with a corporation, having or claiming adverse rights. It is simply in the pursuit of its own policy, adapting that policy to public necessities and exigencies, as may be deemed most promotive of public rights and interests." [Italica supplied.]

The court then did not have a constitutional provision such as section 215. But since its adoption in the Constitution of 1875 (section 5, article 11) this court has had the following to say in that connection: "A fallacy of the argument of counsel, fatal to it, lies in the supposition that the constitution grants to a county power of taxation, and that the power of taxation which legislation may delegate to them is in any proper sense a constitutional power. It is power derived from legislation, and may be withheld or changed or modified at legislative discretion, no element of contract with third persons intervening, compelling a levy and appropriation of taxes. Edwards v. Williamson, 70 Ala. 145." State v. Street, 117 Ala. 203, 210, 23 So. 807, 809; Phoenix Carpet Co. v. State, 118 Ala. 143, 151, 153, 22 So. 627, 72 Am. St. Rep. 143; State v. Butler, 225 Ala. 191, 142 So. 531.

We have fallen in line with other courts, without exception, so far as we know, which hold that it is not a mere donation for the Legislature to make an appropriation for a member of the State Militia injured in the line of his duty. State v. Clements, 220 Ala. 515, 126 So. 162. Some courts have gone further, and held, with none to the contrary, that an appropriation for the relief of the widow of a public officer killed in the performance of his duty is not within the operation of constitutional provisions prohibiting donations in aid of an individual. State of Wyoming v. Carter, 30 Wyo. 22, 215 P. 477, 479, 28 A. L. R. 1089, Anno. page 1100; In re Opinion of Justices, 175 Mass. 599, 57 N.E. 675, 677, 49 L. R. A. 564.

In the case of State of Wyoming v. Carter, supra, some observations were made which seem to us to be sound and pertinent in this case. It is there conceded, whether the Constitution so expressly provides or not, that an appropriation of public revenues must be for a public purpose. It is there said that an appropriation to pay a just claim against the state is necessarily for a public purpose. That "in a sense, of course, every payment not legally enforceable might be said to be a gift. But courts have not, generally, construed that term as broadly as that." On the other hand, it is there said to be "a claim which a state may recognize, it need not be such as is legally enforceable, but may be a moral claim, one based on equity and justice." It quotes from U.S. v. Realty Co., 163 U.S. 427, 16 S.Ct. 1120, 41 L.Ed. 215, construing constitutional authority of Congress to pay "debts" of the United States, as follows: "The term 'debts' includes those debts or claims which rest upon a merely equitable or honorary obligation, and which would not be recoverable in a court of law if existing against an individual. The nation, speaking broadly, owes a 'debt' to an individual when his claim grows out of general principles of right and justice; when, in other words, it is based upon considerations of a moral or merely honorary nature, such as are binding on the conscience or the honor of an individual, although the debt could obtain no recognition in a court of law."

Likewise in the Massachusetts case (Opinion of Justices), supra, the court refers to the fact such an appropriation may be made only "in a case where it fairly can be thought that the public good will be served by the grant of such an unstipulated reward, but that it has not that right where the only public advantage is such as may be incident and collateral to the relief of a private citizen. To a great extent the distinction must be left to the conscience of the legislature. Whether a judicial remedy could be found if a clear case should arise of an unconstitutional appropriation it happily is unnecessary to inquire."

Though we may not...